ULAHANNAN KURIAN Vs. MARKOSE

JUDGEMENT

(1.) This appeal is filed by defendants 9 and 10 in O. S. No. 196 of 1977 on the file of the Ist Additional District (Special) Court, Ernakulam. The suit was originally filed as O. S. No. 203 of 1973 in the Sub Court, Kottayam. Subsequently the suit was transferred to the Special Court, Ernakulam, which tries the church cases where it was renumbered as O. S. No. 196 of 1977. On 9.1.1998, the learned counsel appearing for the plaintiffs in that suit made an endorsement in the plaint that the suit had become infructuous in view of the Supreme Court judgment and on the basis of that endorsement the learned District Judge dismissed the suit. The judgment of the learned District Judge dated 9.1.1998 against which this appeal is filed reads as follows:

(2.) It is seen from the judgment that the counsel appearing for the plaintiffs in the suit submitted that the suit had become infructuous and hence the suit may be disposed of. There was no posting of the suit to that day and the Court suo motu advanced the posting of the case and on getting an endorsement on the plaint that the suit had become infructuous the suit was dismissed.

(3.) It is not disputed that the suit was filed in a representative capacity and that the defendants in the suit were sought to be served for and on behalf of those who were having the same interest in the suit. At the time of the institution of the suit, there was two plaintiffs and 7 defendants in the suit. The appellants in this appeal who are defendants 9 and 10 in the suit got themselves impleaded after publication made under O.1, R.8 Code of Civil Procedure. Now the appellants challenge the correctness of the judgment and decree in the suit by saying that the dismissal of the suit on the basis of the endorsement made by the learned counsel appearing for the plaintiffs that the suit had become infructuous without making publication under O.1 R.8(4) of the Code of Civil Procedure was illegal.